Jan. 14 (UPI) -- A federal appeals court on Thursday vacated stays of execution for two federal death row inmates who sought relief because they're recovering from COVID-19.
Corey Johnson, 52, is set to be executed Thursday at the U.S. Penitentiary in Terre Haute, Ind, and Dustin Higgs, 55, is scheduled to die Friday.
The U.S. Circuit Court for the District of Columbia cited "substantial conflicting testimony on whether asymptomatic or mildly symptomatic COVID-19 patients would be more likely to experience flash pulmonary edema" during an execution.
Prisoners must show more than conflicting testimony, the panel said, to be obtain a stay of execution.
The judges also questioned the extent to which the novel coronavirus damaged Johnson's and Higgs' lungs.
A lower court on Tuesday blocked the U.S. government from executing the two men, agreeing with their attorneys that their recent COVID-19 diagnoses meant the effect of pentobarbital during the execution process could be more painful than it would be otherwise.
District Judge Tanya Chutkan of the District of Columbia wrote that the public interest was not best served by executing inmates with COVID-19, saying that death penalties should be consistent with the Constitution.
Additionally, she said, carrying out the lethal injections during a COVID-19 outbreak at the prison would put those attending the executions at risk.
Donald Salzman, an attorney for Johnson, said Thursday he plans to ask the full appeals court for a review of the case.
"The government must stop trying to execute Corey Johnson while he is still recovering from the COVID-19 infection he contracted as a result of the government's own irresponsibility in carrying out executions during the pandemic," he said. "There is no principled reason not to wait until the injunction expires in March to assess whether Mr. Johnson's lungs have healed sufficiently that he will not suffer excruciating pain during an execution."
Lawyers for the government argued in a motion Wednesday that the possible impact of pentobarbital on people who've had COVID-19 are "speculative" and "therefore falls far short of the 'exceedingly high bar' for last-minute injunctive relief."
Johnson's lawyers had also sought a stay citing his intellectual disability and the fact that no court has heard evidence of that claim. The 4th U.S. Circuit Court of Appeals denied that request Tuesday and attorneys responded with a request for an en banc hearing with the full court.
Johnson's attorneys said his initial trial lawyers questioned a psychologist who used outdated standards to conclude that he was not intellectually disabled. New evidence, they said, includes test results showing he had an IQ of 69 at age 16 and expert evaluations to show that the original conclusion was incorrect.
Robert Dunham, executive director of the Death Penalty Information Center, told UPI that Johnson's case is part of a trend in which states and the federal government are unconstitutionally executing people with intellectual disability. In 2002, the U.S. Supreme Court ruled that putting to death people who can't understand the punishment violates the Eighth Amendment.
Dunham said prosecutors in some states have successfully argued for intellectually disabled death row inmates to be executed because their cases had been decided before the Supreme Court's ruling.
A DPIC analysis of more than 130 overturned death penalty cases released in September also found that a disproportionate number of persons of color with intellectual disability have been sentenced to death. In those cases, 80% were persons of color, of which two-thirds were Black.
"Our conclusion is that the prohibition against executing intellectually disabled people is being violated almost with impunity and it's also our conclusion that it is tremendously racially discriminatory," Dunham said.
Johnson was sentenced to death in 1993 for 10 murders tied to his participation in a Richmond, Va., drug gang. Accomplices James Roane and Richard Tipton also received the death penalty for their involvement.
Johnson's lawyers said a childhood of abuse and neglect led to intellectual disability, and that his mother put him in a facility for children with intellectual and emotional impairments when he was 13.
They also described Johnson's punishment as "arbitrary" because another accomplice, Vernon Thomas, received a life sentence due to intellectual disability.
Also, Thursday, the 4th Circuit denied a stay request in which attorneys argued that a district court didn't have jurisdiction to amend Johnson's death judgment and order in 2005.
If he's executed Thursday, Johnson would be the second federal inmate put to death in 2021 and the 12th by the Trump administration since it resumed federal executions last summer.
The U.S. government executed Lisa Montgomery, the only woman on federal death row, on Wednesday.